Last Updated: February 18, 2019
This mobile application end user license agreement is a binding agreement between you (“End User” or “you”) and Penny Ventures, LLC, a Delaware limited liability company (the “Company”). This agreement governs your use of the Quackle App on the iOS mobile platform (including all related documentation, the “Application”). The Application is licensed, not sold, to you.
By clicking the “Agree” button or downloading, installing, or using the Application, you (a) acknowledge that you have read and understand this agreement; (b) state that you are 18-years old or older; and (c) accept this agreement and agree that you are legally bound by its terms. If you do not agree to this agreement, do not download, install, or use the Application and delete it from your mobile device.
The parties agree as follows:
1. Parties. This agreement is between you and the Company only, and not Apple, Inc. (“Apple”). The Company, not Apple, is solely responsible for the Application and its content. Although Apple is not a party to this agreement, Apple has the right to enforce this agreement against you as a third-party beneficiary relating to your use of the Application.
2. License Grant. The Company hereby grants you a limited, nonexclusive, and nontransferable license to:
2.1. download, install, and use the Application for your personal, noncommercial use on a single mobile device owned or otherwise controlled by you (the “Mobile Device”) strictly in accordance with the Application’s documentation and the Usage Rules set out in the App Store Terms of Service; and
2.2. access, stream, download, and use on that Mobile Device the Content and Services (as defined in section 7) made available in or otherwise accessible through the Application, strictly in accordance with this agreement, the Terms-of-Service Agreement, and the Creator Agreement
applicable to that Content and Services as set out in section 7.
3. License Restrictions. You will not:
3.1. copy the Application, except as expressly permitted by this license and the Usage Rules;
3.2. modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;
3.3. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part of it;
3.4. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy of it;
3.5. except as provided in the Usage Rules, rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time; or
3.6. remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application.
4. Reservation of Rights. You acknowledge that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this agreement, or any other rights to it other than to use the Application in accordance with the license granted, and subject to this agreement. The Company and its licensors and service providers retain their entire interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights in it or relating to it, except as expressly granted to you in this agreement.
5. Maintenance and Support. Because the Application is free to download and use, the Company does not provide any maintenance or support for the Application. If any maintenance or support is required by applicable law, the Company, not Apple, will furnish that maintenance or support. You acknowledge that Apple has no obligation to furnish and maintenance and support services with respect to the Application.
7. Content and Services. The Application may provide you with access to the Company’s website located at www.quackle.com (the “Website”) and products and services accessible on it, and certain features, functionality, and content accessible on or through the Application may be hosted on the Website (collectively, the “Content and Services”). The Website’s Terms-of-Service Agreement, the Creator Agreement
will also be considered a violation of this agreement.
8. Updates. The Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, or new features (collectively, including related documentation, the “Updates”). The Updates may also modify or delete in their entirety certain features and functionality. You acknowledge that the Company is not required to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the Internet either: (a) the Application will automatically download and install all available Updates; or (b) you may receive notice of or be prompted to download and install available Updates. You will promptly download and install all Updates, and you acknowledge that the Application or parts of it might not properly operate if you fail to do so. You further acknowledge that all Updates will be considered part of the Application and be subject to this agreement.
9. Third-Party Materials.The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, or materials) or provide links to third-party websites or services, including through third-party advertising (the “Third-Party Materials”). You acknowledge that the Company is not responsible for the Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect of the Third-Party Materials. The Company does not assume and will not have any liability or responsibility to you or any other individual or entity for any Third-Party Materials. The Third-Party Materials and links to the Third-Party Materials are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to those third parties’ terms and conditions.
10. External Services. The Application may enable access to the Company’s or third-party services or websites (collectively and individually, “External Services”). You use the External Services at your sole risk. The Company is not responsible for examining or evaluating the content or accuracy of any third-party External Services and will not be liable for any third-party External Services. Data displayed by the Application or External Service, including financial, medical, and location information, is for general informational purposes only and is not guaranteed by the Company or its agents. You will not use the External Services in any manner that is inconsistent with this agreement or that infringes the intellectual-property rights of the Company or any third party. You will not use the External Services to harass, abuse, stalk, threaten, or defame any person or entity, and the Company is not responsible for any such use. External Services might not be available in all languages or in your Home Country and might not be appropriate or available for use in any particular location. If you choose to use those External Services, you are solely responsible for compliance with any applicable laws. The Company may change, suspend, remove, disable, or impose access restrictions or limits on any External Services at any time without notice or liability to you.
11. Term and Termination
11.1. The term of this agreement begins when you download the Application and will continue in effect until terminated by you or the Company as stated in this section 11.
11.2. You may terminate this agreement by deleting the Application and all copies of it from your Mobile Device.
11.3. The Company may terminate this agreement at any time without notice if it stops supporting the Application, which the Company may do in its sole discretion. In addition, this agreement will terminate immediately and automatically without any notice if you violate any part of this agreement.
11.4. On termination of this agreement, (a) all rights granted to you under this agreement will also terminate; and (b) you must stop using the Application and delete all copies of the Application from your Mobile Device and account.
11.5. Termination will not limit any of the Company’s rights or remedies at law or in equity.
12. Disclaimer of Warranties. The Application is provided to you “as is” and with all faults and defects without warranty. To the greatest extent permitted under applicable law, the Company, on its own behalf and on behalf of its affiliates and its and their respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory, or otherwise, with respect to the Application, including all implied warranties of merchantability, fitness for a particular purpose, title, and noninfringement, and warranties that may arise out of course of dealing, course of performance, usage, or trade practice. The Company is not making any warranty that the Application will meet your requirements, achieve any intended results, be compatible, or work with any other software, applications, systems, or services, operate without interruption, meet any performance or reliability standards or be error-free, or that any errors or defects can or will be corrected. Some jurisdictions do not allow the exclusion of or limitations on implied warranties or the limitations on the applicable statutory rights of a consumer, so some or all the above exclusions and limitations might not apply to you. To the extent that any warranty exists under law that cannot be disclaimed, the Company, not Apple, will be solely responsible for that warranty.
13. Limitation of Liability. To the greatest extent permitted by applicable law, neither the Company nor its affiliates, nor any of its or their respective licensors or service providers, will have any liability arising from or related to your use of or inability to use the Application or the Content and Services for:
13.1. Personal injury, property damage, lost profits, cost of substitute goods or services, loss of data, loss of goodwill, business interruption, computer failure or malfunction, or any other consequential, incidental, indirect, exemplary, special, statutory, or punitive damages.
13.2. Direct damages in amounts that in the aggregate exceed the amount actually paid by you for the Application.
The foregoing limitations will apply whether those damages arise out of breach of contract, tort (including negligence), or otherwise and regardless of whether those damages were foreseeable or the Company was advised of the possibility of those damages. Some jurisdictions do not allow certain limitations of liability so some or all the above limitations of liability might not apply to you. In no event will the Company’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed $50. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
14. Product Claims.The Company does not make any warranties concerning the Application. If you have any claim arising from or relating to your use of the Application, the Company, not Apple, is responsible for addressing such claims, which may include (i) any product liability claim; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Nothing in this agreement should be considered an admission that you may have those claims.
15. Third-Party Intellectual Property Claims. The Company is not required to indemnify or defend you with respect to any third-party claim arising out of or relating to the Application. If the Company is required to provide indemnification by applicable law, the Company, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any claim that the Application or your use of it infringes any third-party intellectual property right.
16.1. In General. You will pay the Company and its officers, directors, employees, agents, affiliates, successors, and assigns for any loss of theirs that is caused by your (i) breach of this agreement; (ii) abuse, misuse, or unauthorized use of the Application; (iii) violation or infringement of third-party rights, including intellectual-property rights; (iv) violation of applicable law; or (v) tortious acts or omissions. But you are not required to pay if the loss was caused by the Company’s actual intentional misconduct.
(a) “Loss” means an amount that the Company is legally responsible for or pays in any form. Amounts include, for example, a judgment, a settlement, a fine, damages, injunctive relief, staff compensation, a decrease in property value, and expenses for defending against a claim for a loss (including fees for legal counsel, expert witnesses, and other advisers). A loss can be tangible or intangible; can arise from bodily injury, property damage, or other causes; can be based on tort, breach of contract, or any other theory of recovery; and includes incidental, direct, and consequential damages.
(b) A loss is “caused by” an event if the loss would not have occurred without the event, even if the event is not a proximate cause of the loss.
16.3. Company’s Duty to Notify. The Company will notify you before the 15th business day after the Company knows or should reasonably have known of a claim for a loss that you might be obligated to pay. The Company’s failure to give you timely notice does not terminate your obligation, except to the extent that the failure prejudices your ability to defend the claim or mitigate losses.
16.4. Legal Defense of a Claim
(a) Company’s Control. The Company has control over defending a claim for a loss (including settling it), unless the Company directs you to control the defense.
(b) Direction to Control. If the Company directs you to control the defense, each of the following applies:
(i) You may choose and retain legal counsel.
(ii) The Company may retain its own legal counsel at its expense.
(iii) You will not settle any litigation without the Company’s written consent if the settlement (1) imposes a penalty or limitation on the Company, (2) admits the Company’s fault, or (3) does not fully release the Company from liability.
(c) Good Faith. You and the Company will cooperate with each other in good faith on a claim.
16.5. No Exclusivity. The Company’s rights under this section 16 do not affect other rights that the Company might have.
17. Export Regulation. The Application is subject to US export control laws, including the US Export Administration Act and its associated regulations. You will not, directly or indirectly, export, reexport, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, reexport, or release is prohibited by law, rule, or regulation, including (a) into any US-embargoed countries or (b) to anyone on the US Treasury Department’s Specially Designated Nationals List or the US Department of Commerce Denied Persons List or Entity List. By using the Application, you state that you are not located in any such country or on any such list. You will comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other government approval), before exporting, reexporting, releasing, or otherwise making the Application available outside the US.
18. Dispute Resolution
18.1. Litigation Election. Either party may elect to litigate the following type of case or controversy: (a) an action seeking injunctive relief, or (b) a suit to compel compliance with this section 18.
18.2. Negotiation. Each party will give the other a reasonable opportunity to comply before it claims that the other has not met its obligations under this agreement. The parties will first meet and negotiate with each other in good faith to try to resolve all disputes between the parties arising out of, or relating to the subject matter of, this agreement. The party raising a dispute will submit to the other party a written notice and supporting material describing all issues and circumstances related to the dispute (a “Dispute Notice”).
18.3. Arbitration. If the parties cannot settle a dispute through negotiation, the parties will settle any unresolved dispute arising out of or relating to this agreement, or the breach of it, by arbitration administered by the Arbitration Resolution Services, Inc. (ARS) (or a similar online dispute resolution provider if ARS is not available) in accordance with its rules available at www.arbresolutions.com, and each party hereby consents to any such dispute being so resolved. The arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve all disputes arising out of or relating to the interpretation, enforceability, or formation of this agreement, including any claim that all or any part of this agreement is void or voidable. Each party will be responsible for paying any filing, administrative, and arbitrator fees associated with the arbitration. The arbitrator may grant whatever relief that would be available in a court at law or in equity, except that the arbitrator must not award punitive or exemplary damages, or damages otherwise limited or excluded in this agreement. The arbitrator’s award will include costs of arbitration, reasonable legal fees under section 18.6, and reasonable costs for expert and other witnesses. Judgment on any award rendered in any such arbitration may be entered in any court having jurisdiction. Unless required by law, neither a party nor an arbitrator will disclose the existence, content, or results of any arbitration under this agreement without the advance written consent of both parties.
18.4. Equitable Relief. You acknowledge that breach of threatened breach of any of your obligations in this agreement may result in irreparable harm to the Company that cannot be adequately relieved solely by money damages. The parties intend that after any breach or threatened breach, the Company may request from a court of competent jurisdiction any applicable equitable remedies, including injunctive relief, without proving actual damage or posting a bond or other security.
18.5. Jurisdiction and Venue
(a) If a party brings any proceeding seeking an injunction, a restraining order, or any other equitable remedy to which that party is entitled under this agreement, that party will bring that proceeding only in the federal and state courts of competent jurisdiction located in Wilmington, Delaware, and each party hereby submits to the exclusive jurisdiction and venue of those courts for purposes of any proceeding.
(b) Each party hereby waives any claim that any proceeding brought in accordance with section 18.5(a) has been brought in an inconvenient forum or that the venue of that proceeding is improper.
18.6. Recovery of Expenses. In any proceedings between the parties arising out of this agreement or relating to the subject matter of this agreement, the Prevailing Party will be entitled to recover from the other party, in addition to any other relief awarded, all expenses that the Prevailing Party incurs in those proceedings, including legal fees and expenses. For purposes of this section 18.6, “Prevailing Party” means, for any proceedings, the party in whose favor an award is rendered, except that if in those proceedings the award finds in favor of one party on one or more claims or counterclaims and in favor of the other party on one or more other claims or counterclaims, neither party will be the Prevailing Party. If any proceedings are voluntarily dismissed or are dismissed as part of settlement of that dispute, neither party will be the Prevailing Party in those proceedings.
18.7. Jury Trial Waiver. Each party hereby waives its right to a trial by jury in any proceedings arising out of, or relating to the subject matter of, this agreement. Either party may enforce this waiver up to and including the first day of trial.
18.8. Class Action Waiver. The parties will conduct any proceedings to resolve a dispute in any forum on an individual basis only. Neither party will try to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. The parties will not combine any proceeding with another without the advanced written consent of all parties to all affected proceedings.
18.9. Limited Time to Bring Claims. A party will not bring a claim arising out of, or related to the subject matter of, this agreement more than one year after the cause of action arose. Any claim brought after one year is barred.
19.1. Entire Agreement. This agreement, the Creator Agreement
19.2. Amendment. The Company may amend this agreement on one or more occasions by posting amendments to the Website. If you do not accept amendments to this agreement, then this license will immediately terminate.
19.3. Assignment and Delegation. You will not assign any rights or delegate any performances under this agreement without the Company’s advance written consent. The Company may assign its rights or delegate its performances under this agreement without your written consent. Any purported assignment of rights or delegation of performance in breach of this section 19.3 is void.
19.4. Waivers. The parties may waive any provision in this agreement only by a writing signed by the party or parties against whom the waiver is sought to be enforced. No failure or delay in exercising any right or remedy, or in requiring the satisfaction of any condition, under this agreement, and no act, omission, or course of dealing between the parties, operates as a waiver or estoppel of any right, remedy, or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver on any future occasion or against any other person.
19.5. Severability. The parties intend as follows:
(a) that if any provision of this agreement is held to be unenforceable, then that provision will be modified to the minimum extent necessary to make it enforceable, unless that modification is not permitted by law, in which case that provision will be disregarded;
(b) that if modifying or disregarding the unenforceable provision would result in failure of an essential purpose of this agreement, the entire agreement will be held unenforceable;
(c) that if an unenforceable provision is modified or disregarded in accordance with this section 19.5, then the rest of the agreement will remain in effect as written; and
(d) that any unenforceable provision will remain as written in any circumstances other than those in which the provision is held to be unenforceable.
19.6. Governing Law.Delaware law, without giving effect to its conflicts of law principles, governs all matters arising out of or relating to this agreement, including its validity, interpretation, construction, performance, and enforcement. This agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
19.7. Successors and Assigns. This agreement binds and inures to the benefit of the parties and their respective successors and assigns. This section 19.7 does not address, directly or indirectly, whether a party may assign its rights or delegate its obligations under this agreement. Section 19.3 addresses these matters.
19.8. Third-Party Terms of Agreement. You will comply with applicable third-party terms of agreement when using this Application (e.g., your wireless data service agreement).
19.9. No Third-Party Beneficiaries. Except as stated in section 1 with respect to Apple, this agreement does not, and the parties do not intend it to, confer any rights or remedies on any person other than the parties to this agreement.
19.10. Your Comments and Concerns. You should direct all feedback, comments, requests for technical support, and other communications relating to the Application to email@example.com.